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NAVY | DRB | 2005_Navy | ND0501362
Original file (ND0501362.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-SR, USN
Docket No. ND05-01362

Applicant’s Request
The application for discharge review was received on 20050816. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060413. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain as a bad conduct discharge by reason of court-martial conviction.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application and/or attached document/letter:

“Dear NDRB:

I am writing you today to ask you to up-grade my discharge. I have been out of the military since 2000 and have made a lot changes since then. I can start by talking about the mistake I have made and thing I had taken the blames for things I did not do in the military. But I will not, The Navy has made me a strong and positive person. When I arrived home I wanted something for myself and to show my self and my child the positive things I can do. I started off by going back to school and getting my AAS and AA, I am now completing a degree in nursing. I also have taken time to devote myself to be a foster parent. I have purchased my own home in 2/2001 and purchased six more apartments for investment.

I loved the Navy and the reason I joined was to make something of myself. While I was in the Navy I was promoted to E-4. As much as I tried to work hard and do good I was missing something and that was my child. While I was in the service my daughter under went surgery and was living with my sister because my mom health was going bad. While my child was living with my sister her boyfriend was abusive and sexually abusive to my daughter. My sisters boyfriend is now servicing jail time. Being so far away from my child and feeling so helpless and I could not do anything being in Washington State and She in Rhode Island. And being denied time to leave, put me in a bad depression.

After leaving the military in 2000, I went though a lot of stages. I have taken medication for depression seen doctors for my depression and went though a lot with attempted suicide. I can happily say today I am off medication and no longer suffering from the depression I had. It taken along time but I had to take the time to find myself and move
on.

I am asking again to please up-grade my discharge. I am not saying I am perfect now and will not make mistakes. But yes I have learned from my mistakes in the past and promise to make myself a better person and will devote myself to speaking with others so they can better themselves.
I am sorry for the mistakes I did make and will reget that for the rest of my life.

If you have any questions or concerns please call me at (telephone number deleted)

Sincerely,
[signed]
L_ B_(Applicant)”
 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Certificate for participating in the Second Annual Principal for a Day Program, dted April 14, 2005
Certificate of Valuable Volunteer, dtd May 10, 2005
Certificate of appointment as a notary public of the State of Maryland, dtd April 22, 2004
Certificate of appointment, undtd
Certificate of completion, dtd October 5, 2000
Letter to Applicant from Board for Correction of Naval Records, dtd January 12, 2000
Letter to Applicant from Board for Correction of Naval Records, dtd January 12, 2000
Certificate of completion, dtd May 8, 2004
Certificate of completion, dtd June 26, 2004
Certificate of achievement, dtd January 24, 2001
Employment verification, dtd August 12, 2003
Attendance verification from Vincennes University, undtd
Criminal History Record, dtd October 25, 2003
Associate in Applied Science Degree, dtd December 18, 1999
Vincennes University academic record
Community College of Rhode Island
Employment verification, dtd July 18, 2002
Class attendance verification, dtd August 20, 2001
Employment verification, dtd October 15, 2004
Nurse License certification renewal, dtd November 28, 2004 (2)
National Black Nurses Association, Inc. card with an expiration date of January 1, 2005
Request for a criminal history record check, dtd August 25, 2004 (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19980717 - 19980805      COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19980806             Date of Discharge: 20040913

 Length of Service (years, months, days):

         Active: 06 01 08
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              58 days
         Appellate Leave:         1641 days

 Age at Entry: 23

 Years Contracted: 4 (12 month extension)

 Education Level: 12                                 AFQT: 38

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.0 (2)                       Behavior: 3.0 (2)                 OTA: 3.09

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): None


Character, Narrative Reason, and Authority of Discharge (at time of issuance):
BAD CONDUCT/COURT MARTIAL, authority: NAVMILPERSMAN, Article 5815-010.
Chronological Listing of Significant Service Events :

991029:  NJP for violation of UCMJ, Article 92 (Failure to obey a lawful general regulation) in that SN B_(Applicant) failed to protect and conserve government property and wrongfully use government property, to wit: personal use of government franked envelopes in violation of Joint Ethics Regulation, paragraph 4-B dated 30Aug93. Date of offense: 990920.
         Award: Forfeiture of $200 per month for 1 month (suspended for 6 mos), extra duty for 15 days, reduction to E-2 (suspended for 6 mos). No indication of appeal in the record. [Date has a pen change on page in ROT.]

991101:  Retention Warning: Advised of deficiency (Misconduct as evidenced by CO’s NJP on 29 October 1999, for violation of the UCMJ, Article 92, failing to obey a lawful regulation.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. [Extracted from ROT.]

 991217:  NJP for “violation of UCMJ, Article 123, In that SN B_(Applicant) falsely alter and utter a LES and Statement o ______Wit she deleted her BAH to defraud the State of Washington.”
         Award: Restriction and extra duty for 45 days, reduction to E-1 (suspended for 6 mos). No indication of appeal in the record. Date of offense: 991012.

 000118:  Applicant to pretrial confinement.

 000204:  Charges preferred for Charge I: Violation of the UCMJ, Article 81:
 Specification: In that Seaman Apprentice L_ NMN B_(Applicant), U.S. Navy, Naval Station Bremerton, Bremerton, Washington, on active duty, did, at or near Naval Station Bremerton, Bremerton, Washington, on or about 6 January 2000, conspire with a unnamed person to commit an offense under the Uniform Code of Military Justice, to wit: forgery of a Department of the Navy, Navy and Marine Corps Commendation Medal Certificate and two Certificates of Appointment, and in order to effect the object of the conspiracy the said Seaman Apprentice L_ NMN B_(Applicant) and the unnamed person met and Seaman Apprentice L_ NMN B_(Applicant) received one forged Department of the Navy, Navy and Marine Corps Commendation Medal Certificate and two forged Certificates of Appointment.
Charge II: Violation of the UCMJ, Article 108:
Specification: In that Seaman Apprentice L_ NMN B_(Applicant), U.S. Navy, Naval Station Bremerton, Bremerton, Washington, on active duty, did, at Naval Station Bremerton, located at Bremerton Washington, on or about 6 January 2000, without proper authority, willfully damage, by burning, Building 443, room 209 and contents therein, of a value of about $17,000, military property of the United States.
Charge III: Violation of the UCMJ, Article 123:
Specification 1: In that Seaman Apprentice L_ NMN B_(Applicant), U.S. Navy, Naval Station Bremerton, Bremerton, Washington, on active duty, did, at or near Naval Station Bremerton, Bremerton, Washington, on or about 6 January 2000, with intent to defraud, falsely make a Certificate of Appointment, by adding to a blank Certificate of Appointment form, the following words to wit: “SH2 L_ B_”, which would, if genuine, apparently operate to the legal harm of another, and which could be used to the legal harm of the United States, in that Seaman L_ NMN B_(Applicant), U.S. Navy, was entitled to pay and/or benefits of Ship’s Storekeeper Second Class for which she was not eligible.
Specification 2: In that Seaman Apprentice L_ NMN B_(Applicant), U.S. Navy, Naval Station Bremerton, Bremerton, Washington, on active duty, did, at or near Naval Station Bremerton, Bremerton, Washington, on or about 6 January 2000, with intent to defraud, falsely alter a Certificate of Appointment, by adding to a blank Certificate of Appointment form, the following words to wit: “SH3 L_ B_(Applicant)”, which would, if genuine, apparently operate to the legal harm of another, and which could be used to the legal harm of United States, in that Seaman L_ NMN B_(Applicant), U.S. Navy, was entitled to pay and/or benefits of Ship’s Storekeeper Second Class for which she was not eligible.
Specification 3: that Seaman Apprentice L_ NMN B_(Applicant), U.S. Navy, Naval Station Bremerton, Bremerton, Washington, on active duty, did, at or near Naval Station Bremerton, Bremerton, Washington, on or about 6 January 2000, with intent to defraud, falsely make a Department of the Navy, Navy and Marine Corps Commendation Medal Certificate, by adding to Department of the Navy, Navy and Marine Corps Commendation Medal Certificate, the following words to wit: “L_ B_ for Good Conduct”, which would, if genuine, apparently operate to the legal harm of another, and which could be used to the legal harm of United States, in that Seaman L_ NMN B_(Applicant), U.S. Navy, was authorized to wear a Department of the Navy, Navy and Marine Corps Commendation Medal Certificate for which she was not eligible.
Charge IV: Violation of the UCMJ, Article 126:
Specification: In that Seaman Apprentice L_ NMN B_(Applicant), U.S. Navy, Naval Station Bremerton, Bremerton, Washington, on active duty, did, at Naval Station Bremerton, located at Bremerton, Washington, on or about 7 January 2000, willfully and maliciously set on fire, knowing that a human being was therein at the time, Building 443, room 209, the military property of the United States, of a value of about $17,000.
Charge V: Article 134: Reckless Endangerment
Specification 1: In that Seaman Apprentice L_ NMN B_(Applicant), U.S. Navy, Naval Station Bremerton, Bremerton, Washington, on active duty, did, at Naval Station Bremerton, located at Bremerton, Washington, on or about 7 January 2000, wrongfully and recklessly engage in conduct, to wit: she set fire to Building 443, room 209 and that the accused’s conduct was likely to cause death or serious bodily harm to Lieutenant J_ C. C_, Operation Specialist’s Second Class P_ A. P_, Storekeeper Third Class K_ A. Z_, and Quartermaster Third Class L_ R. A_.
Specification 2: In that Seaman Apprentice L_ NMN B_(Applicant), U.S. Navy, Naval Station Bremerton, Bremerton, Washington, on active duty, did, at or near Naval Station Bremerton, Bremerton, Washington, on or about 6 January 2000, wrongfully solicit a unnamed person to forge a Department of the Navy, Navy and Marine Corps Commendation Medal Certificate and two Certificates of Appointment.
000315:  Charges referred to special court-martial.

 000316:  Special Court Martial
         Charge I: Violation of the UCMJ, Article 81 Plea: Not Guilty. Findings: Not Guilty.
 Specification: Did, on or about 6 January 2000, conspire with an unnamed person to commit an offense under the UCMJ, to wit: forgery.
Charge II: Violation of the UCMJ, Article 108. Plea: Not Guilty. Findings: Not Guilty.
Specification: Did, on or about 6 January 2000, without proper authority, damage by burning Building 443, room 209, of a value of about $17,000, military property of the United States.
Charge III: Violation of the UCMJ, Article 123. Plea: Not Guilty. Findings: Not Guilty.
Specification 1: Did, on or about 6 January 2000, with intent to defraud, falsely alter a Certificate of Appointment, by adding the words “SH2 L_ B_(Applicant), which she was not eligible. Plea: Not Guilty. Findings: Not Guilty.
Specification 2: Did, on or about 6 January 2000, with intent to defraud, falsely alter a Certificate of Appointment, by adding the words “SH3 L_ B_(Applicant), which she was not eligible. Plea: Not Guilty. Findings: Not Guilty.
Specification 3: Did, on or about 6 January 2000, with intent to defraud, falsely make a Department of the Navy, Navy and Marine Corps Commendation Medal Certificate, by adding the words “L_ B_(Applicant) for Good Conduct”. Plea: Not Guilty. Findings: Not Guilty.
Charge IV: Violation of the UCMJ, Article 126. Plea: Guilty. Findings: Guilty.
Specification: Did, on or about 7 January 2000, willfully and maliciously set on fire, knowing that a human being was therein at the time, Building 443, room 209, the military property of the United States, of a value of about $17,000. Plea: Guilty. Findings: Guilty.
Charge V: Violation of the UCMJ, Article 126. Plea: Not Guilty. Findings: Not Guilty.
Specification 1: Did, on or about 7 January 2000, wrongfully and recklessly engage in conduct, to wit: Which set fire to Building 443, room 209 conduct which was likely to cause death or serious bodily harm to Lieutenant C_, U. S. Navy, Operation Specialist’s Second Class P_, U. S. Navy, Storekeeper Third Class Z_, U. S. Navy, and Quartermaster Third Class A_, U. S. Navy. Plea: Not Guilty. Findings: Not Guilty.
Specification 2: Did, on or about 6 January 2000, wrongfully solicit an unnamed person to forge a Department of the Navy and Marine Corps Commendation Medal Certificate and two Certificates of Appointment. Plea: Not Guilty. Findings: Not Guilty.
          Sentence: Confinement for 6 months, reduction to E-1, Bad Conduct discharge.
         CA 000000: The sentence approved and ordered executed, except for bad conduct discharge.
         SA: see SSPCMO.
         
000317:  Applicant to appellate leave.

021031:  NMCCCA: The findings of guilty and sentence, as approved on review, are affirmed.

030925:  USCAAF: Request for appeal denied
040406:  Appellate review complete.
040422:  SSPCMO: Article 71c, UCMJ, having been complied with, Bad Conduct discharge ordered executed.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged, in absentia, on 20040913 with a bad conduct discharge which was the sentence adjudged by a properly convened special court-martial. That sentence was subsequently approved by both the convening and appellate review authorities (A and (B). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the Applicant’s issues were insufficient to merit clemency (C).

Relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. After a thorough review of the Applicant’s record, issues submitted, and post service accomplishments, the Board determined that clemency was not warranted and that the sentence awarded the Applicant at her court-martial was appropriate for the offenses she committed. Relief denied.
The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required.

 Pertinent Regulation/Law (at time of discharge)

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until 8 Sep 2004, Article 5815-010 (formerly 3640420), Executing a Dishonorable or Bad Conduct Discharge.

B. The Manual for courts-martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court martial for violation of the UCMJ, Article 92, 123, 108, and 126.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 205(2), Jurisdictional Limitations Authority for Review of Discharges.

PART IV - INFORMATION FOR THE APPLICANT
If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Directive 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil ” .
The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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